A comprehensive analysis of labor and employment considerations, including health and safety, for U.S. Workplaces concerned about the Ebola virsus.

1. Response to Ebola Concerns:
Guidance for U.S. Workplaces

2. Thomas Benjamin “Ben” Huggett
Shareholder
Philadelphia Office
tbhuggett@littler.com

3. Affected African Countries

4. Statistics

5. Patient Zero – Dallas Texas
• Initially exposed - 48 people under
observation by CDC and public health
department for initial exposures
– Sunday, October 20 – all cleared
– Including family living in apartment
• Treating Health Care Workers
– 2 developed disease
– Remainder are half way through monitoring

6. Ebola Transmission
Ebola is not transmitted by
• Casual contact
• Air
• Water
• Food grown or legally
purchased in the U.S.

7. Ebola Transmission
• Ebola is transmitted through direct contact with a sick
person’s bodily fluids, the most infectious being blood,
feces and vomit.
• Ebola cannot be spread until an infected person is sick
and showing signs and symptoms.
• Transmission must be to mucous membrane or broken
skin.
• Transmission of Ebola from surface contact with objects
is only known to occur with a significant amount of bodily
fluids, which remain wet (drying out kills the virus), and
are then placed in the mouth, eyes, mucous membranes,
or open cut.

8. Ebola Transmission

9. Symptoms: Ebola vs. Flu
• Ebola Symptoms
• Fever
• Severe headache
• Muscle pain
• Weakness
• Diarrhea
• Vomiting
• Abdominal (stomach)
pain
• Unexplained hemorrhage
(bleeding or bruising)
• Flu Symptoms
• Fever or feeling
feverish/chills
• Headaches
• Muscle or body aches
• Fatigue (tiredness)
• Possible vomiting and
diarrhea, more common
in children than adults.
• Cough
• Sore throat
• Runny or stuffy nose
http://www.cdc.gov

10. Prevention
• Practice careful hygiene. For example, wash your hands
with soap and water or use an alcohol-based hand
sanitizer
• Avoid contact with blood and body fluids (such as urine,
saliva, sweat, feces, vomit, and semen).
• Do not handle items that may have come in contact with
an infected person’s blood or body fluids.
• Avoid direct contact with the body of someone who has
died from Ebola, including participating in funeral or
burial rituals.
• Avoid contact with animals (such as bats or monkeys) or
with raw or undercooked bushmeat (in Africa)

11. Direct Care Healthcare
• Infection Control Programs
– Usually require employees to report specific
illnesses and fever
– Should address both employees and patients
• Employee training
• Ebola Treatment
– New CDC guidelines for protective equipment
preclude exposed skin
– Confirmed training on donning and doffing

12. Ebola Testing and Vaccination
• There is not a reliable blood test for Ebola
prior to development of the illness and its
visible symptoms.
• There is presently no vaccination for Ebola
virus.
– Canada shipped an experimental vaccination
to the WHO for evaluation and use

13. Travel Restrictions
• Centers for Disease Control (CDC) Warning Level 3
categorization for Guinea, Liberia and Sierra Leone.
• Avoid all non-essential travel to these countries.
– Essential travel is defined as humanitarian aid work, all other
travel is considered non-essential.
• Company Travel may be prohibited
• Personal Travel usually cannot be prohibited
– Insurance coverage, including medevac
– Quarantine in Africa or Europe

14. Medical Examinations
• The ADA prohibits employers from making
medical inquiries or requiring medical
examinations.
• Exception
– The ADA allows examinations/inquiries that are job related and
consistent with business necessity.
– Employers are not liable when the employee poses a direct
threat to the health and safety of others in the workplace. Fear
of contraction alone does not justify inquiries/examinations.
42 U.S.C. §§ 12112(d)(4)(A), 12113(a)-(b); 29 C.F.R. §§ 1630.2(r), 1630.14(c)

15. Food and Drug Administration
• Food handling employees must report:
– Vomiting
– Diarrhea
– Jaundice (yellow skin or eyes)
– Sore throat with fever
– Infected cuts and burns with pus on hands and wrists
• Big 5 foodborne pathogens exposure
– The Hepatitis A, Norovirus
– Salmonella typhi (Typhoid-like Fever)
– Shigella spp.
– Escherichia coli 0157:H7 (E. coli) or
– other Enterohemorrohagic or Shiga toxin producing E.coli

16. Exclusion of Employees
• Can an employer exclude an employee for the 21 day
incubation period?
• No direct legal prohibition, but …
– Proxy for medical inquiry or examination
– Perceived disability
– FMLA
– National Origin discrimination
– Race discrimination
• The CDC advises that after traveling individuals can
continue normal activities, including going to work.

17. Self-Monitoring
For 21 days after travel or exposure
• Take your temperature every morning and evening.
• Watch for other Ebola symptoms: severe headache,
muscle pain, vomiting, diarrhea, stomach pain, or
unexplained bleeding or bruising.
• If your temperature is above 101.5°F (38.6°C) and you
have any other Ebola symptoms, seek medical care
immediately.
• Tell the doctor about your recent travel and your
symptoms before you go to the doctor’s office or
hospital. Advance notice will help the doctor care for you
and protect other people who may be in the doctor’s
office or hospital.

18. OSHA
• OSHA’s Bloodborne Pathogens (BBP) Standard requires
employers to have a program, protections and training
for employees who are occupationally exposed to blood
or specific bodily fluids.
– Does not automatically include sweat, urine or feces
– This Standard extends to cleaning up blood in the workplace.
For all employers with a BBP program, it should be reviewed for
any issues arising specifically from Ebola which are not already
included in the program.

19. Cal-OSHA
• In California, the Division of Occupational Safety and
Health (Cal/OSHA) Aerosol Transmissible Diseases
(ATD) standard has provisions which require protection
of employees from infectious diseases transmitted by
inhaling air that contains viruses (including Ebola),
bacteria or other disease causing organisms.
• The ATD standard is limited to specific health care
providers but does provide a potential model for other
locations.

20. OSHA Protected Refusal to work
OSHA protects a refusal to work when:
• The employee must have asked the employer to
eliminate the danger, and the employer failed to do so,
• The employee refused to work in “good faith”—meaning
the employee genuinely believed that there was
imminent danger,
• A reasonable person would agree that there was an
actual danger of death or serious injury, and
• Not enough time exists to correct the situation through
regular enforcement channels.
29 C.F.R. § 1977.12(b)

21. Protected Concerted Activity
• Section 7 of the National Labor Relations Act (NLRA)
gives employees the right to engage in “protected
concerted activity” for “mutual aid or protection”—the
right to act together to try to improve their pay and
working conditions.
• To qualify as protected concerted activity, the activity
– Must be group activity or activity on behalf of a group, not purely
individual activity, and
– Cannot be outlandish conduct involving false statements or
extreme accusations.
St. Luke’s Episcopal-Presbyterian Hosp. v. NLRB, 268 F.3d 575 (8th Cir. 2001)
(public false statement that hospital was endangering babies not protected);
Meyers Indus., 281 NLRB No. 882 (1986).

22. When Is Voicing Safety Concerns
Protected Concerted Activity?
• Voicing concerns about workplace safety can qualify as
protected concerted activity.
• Examples
– Weyerhaeuser Co., 359 NLRB No. 98 (2013) – NLRB held that
an employee engaged in protected concerted activity when he e-mailed
management about another employee’s safety concern.
– Design Technology Group, LLC, 359 NLRB No. 96 (2013) –
Employees of a clothing store tried to persuade their manager to
close the store earlier so that they would not have to walk
through an unsafe neighborhood at night. They also posted
about the issue on Facebook. The NLRB held that the
employees were engaged in protected concerted activity
regarding workplace safety.

23. Ebola-Related Bargaining Demand
• Standards, training, and equipment
– Optimal personal protective equipment – Hazmat suits and respirators
– Continuous interactive and updated training
– Right to refuse to care for an Ebola patient if RN believes conditions unsafe
– At least two RNs care for each Ebola patient
• Create Joint Infectious Disease Joint Force
– Monitors system-wide preparedness
– Evaluates/implements Infectious Disease Plan
• Medical services for employees
– Testing for any RN who requests it
– Provide treatment and follow-up medical evaluations as necessary
• No loss of pay/PTO for nurses who miss work due to Ebola exposure

24. State Law Issues
• Wrongful Discharge
• Defamation
• Unemployment Compensation
• Wage and Hour
• Negligent Retention

25. Practical Recommendations
• Update Pandemic Plan or Infection Control
Plan
• Provide Employee Education
– Transmission
– Good hygiene
• Develop Travel Policy
• Maintain consistent treatment for all
employees

26. Questions & Answers

27. Thomas Benjamin
“Ben” Huggett
Shareholder
Philadelphia Office
tbhuggett@littler.com